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间接正犯是刑法理论和司法实践中的一种特殊犯罪形态,是刑法学研究不可忽视的一个重要课题。目前,我国刑法理论界对间接正犯的研究不够深入,司法实践中此类案件的处理因缺乏法律依据也比较混乱。本文立足我国现行刑法框架,通过几个典型案例引出间接正犯的概念,然后从共同犯罪的沿革和分类法角度阐述我国立法缺失的原因,并认为间接正犯概念的确立具有解决理论冲突和符合刑法价值的优势。最后,从司法实践的角度,通过借鉴域外的经验,提出在我国现行刑法框架下,从法理上承认间接正犯理论,通过比较亲手犯、教唆犯、帮助犯与间接正犯,进而对间接正犯进行认定和处罚。
Indirect prisoners are a kind of special criminal form in criminal law theory and judicial practice, which is an important subject that can not be neglected in the research of criminal law. At present, the research of indirect criminal in our criminal law theory circle is not deep enough, and the handling of such cases in judicial practice is also confused because of lack of legal basis. Based on the current framework of criminal law in our country, this article draws the concept of indirect principal offender through several typical cases, then elaborates the reasons for the lack of legislation in our country from the perspective of the evolution and classification of the crime of common crime and holds that the establishment of the concept of indirect principal offender has the function of resolving theoretical conflicts and meeting the value of criminal law The advantages. Finally, from the perspective of judicial practice, through drawing lessons from extraterritorial experience, this article puts forward that under the current framework of criminal law in our country, we should recognize the theory of indirect principal offender from the jurisprudence, and identify indirectly indirect criminals by comparing the first-time offender, abettor, assisting criminal and indirect principal And punishment.